ALEYAMMA MATHEW Vs. ASSISTANT COLLECTOR OF CENTRAL EXCISE

JUDGEMENT

(1.) The second petitioner having been removed from the array of parties, this petition concerns only the third petitioner and his wife, the first petitioner. The former is a licensee of Nirmala Oil Mills, and the latter is the owner and the licensee of St. Marys Oil Mills, both of which manufacture vegetable non essential oil. It was common ground, that under the relevant Rules and notifications under the Central Excise and Salt Act, 1944, the first seventyfive tons of vegetable non essential oil cleared from the mill by a manufacturer, is exempt from the payment of excise duty. According to the petitioners, they are two different manufacturers of oil in different oil Mills, and therefore each is entitled to the exemption referred to above. But the Excise Inspector granted exemption, only for one of the mills and not for both of them. The petitioners then applied to the Assistant Collector for relief, but he confirmed the order of the Inspector. This petition is to quash both these orders. On the merits it has to be stated, that the orders impugned do not set forth the ground on which exemption was disallowed to one of the mills. The relationship of the petitioners inter se by itself is not a sufficient ground. It may be, as the learned Government Pleader suggested, that on the basis of a communication addressed by the Assistant Collector the two mills were considered to be one entity, or the licence was granted to one of the mills subject to a condition, which negatived the right to the exemption. The orders, passed, however, do not make this clear.

(2.) It is, however, unnecessary to pursue this matter in view of the objection taken by the learned Government Pleader which, in my opinion, has to prevail. Under S.35 of the Act aforesaid a right of appeal is conferred on any person deeming himself aggrieved by any decision or order passed by a Central Excise Officer under this Act or the rules made thereunder. The appeal is to the Central Board of Revenue or in such cases as the Central Government directs, to any Central Excise Officer not inferior in rank to an Assistant Collector of Central Excise and empowered in that behalf by the Central Government. The learned counsel for the petitioner contended, that the application made to the Assistant Collector referred to above was virtually an appeal under the above provision and therefore the petitioners had exhausted their alternative remedy. Granting that the application, though not in form, was in substance an appeal, the petitioners cannot succeed on this contention, unless it is established, that the Assistant Collector was empowered in that behalf, that is, to entertain and dispose of the appeal by the Central Government. No such authority from the Central Government or direction by it, was referred to on behalf of the petitioners. On the contrary, it is seen from R.213 of the Central Exercise Rules, 1944, that the Assistant Collector is not constituted as one of the appellate authorities. If so, the application made by the petitioners to the Assistant Collector, cannot be deemed to have been made in the exercise of the right of appeal conferred by S.35. It must follow, that the petitioners have not availed themselves of the alternative remedy prescribed by the Act.

(3.) It is no doubt true, that the existence of an alternative remedy is not per se a bar to the exercise of the jurisdiction under Art.226. As held by the Supreme Court in State of U.P. v. Mohammed Nooh, AIR 1958 S.C. 86, which I have applied in M/s. C. George Peter v. Its Workmen & Another, 1959 KLJ 1416, ordinarily this court will not interfere under Art.226 when the alternative remedy has not been pursued. I do not find anything in the present case to take it out of the ordinary rule and therefore I decline to interfere with the orders impugned. This petition is dismissed for the above reason, but without costs.